Recent EMTALA Guidance

The Centers for Medicare & Medicaid Services (CMS) recently issued new guidance on the Emergency Medical Treatment and Labor Act (EMTALA) in the form of: 1) a Medicare Learning Network (MLN) publication (MLN Matter Number SE19012) on June 27, 2019; and 2) a Memorandum to State Survey Agency Directors re: Frequently Asked Questions on EMTALA and Psychiatric Hospitals (Ref: QSO-19-15-EMTALA), on July 2, 2019.

MLN Publication:

Referencing the Born-Alive Infant Protection Act of 2002, the MLN publication reaffirms that EMTALA protections extend to newly born infants “when they present for care to a dedicated emergency department, which includes labor and delivery departments, or other locations on the hospital campus.” At the time of birth, a newly born infant is presumed to be presenting with an emergency medical condition that requires a medical screening examination to determine necessary stabilizing treatment.

In accordance with the Conditions of Participation for Patient Rights, CMS encourages healthcare professionals providing prenatal care to discuss potential emergencies and serious conditions that may occur to the pregnant woman, her unborn fetus and born-alive infant throughout her pregnancy. In addition, CMS reaffirms in the MLN publication that the enforcement of EMTALA is a complaint driven process that can be initiated by patients, family members, healthcare professionals or other interested parties. CMS describes in detail the process that it follows upon receipt of an EMTALA complaint.

Memo to State Survey Agency Directors:

Citing confusion and misconceptions regarding the EMTALA obligations of Medicare-participating psychiatric hospitals, CMS issued a Frequently Asked Questions (FAQ) document that addresses common questions CMS receives from psychiatric hospitals regarding EMTALA compliance. Of note, “intake or assessment areas in psychiatric hospitals may meet the threshold of a ‘dedicated emergency department’ as defined in the EMTALA regulations at §489.24(b) and be required to meet EMTALA screening and stabilization requirements.” In addition, “since psychiatric hospitals offer specialized services, they are required to meet the recipient hospital requirements at §489.24(f).” While the FAQ pertains to psychiatric hospitals, CMS did respond to the question of whether an ED physician in a facility that does not provide psychiatric care is capable of conducting the required mental health screening. CMS stated that “it is within the scope of practice for ED physicians and practitioners to evaluate patients presenting with mental health conditions, same with any other medical, surgical, or psychiatric presentation. The ED practitioner may utilize hospital resources to assist with the examination and treatment or arrange appropriate transfers if additional resources are needed.”